Ninth Circuit Court Says VA, Congress and President Seriously Screwed Up

Court decision will radically change VA's approach to Veteran's health treatment.

Sgt. Jacob Blaylock, seated left, one of four in his Guard unit to commit suicide, at the grave of Sgt. Brandon Wallace Photo: Clinton Gill - NY Time

(SALEM, Ore.) - Never in my life have I read words so supportive of veterans.

It is sad and a case of horrible negligence and oversight, but for once, someone in the United States government is putting their foot down, and that 'someone' is the Ninth Circuit Court of Appeals in San Francisco.

We have long been associated with the groups that are bringing the case forward. They are Veterans for Common Sense, of Washington D.C., and Veterans United for Truth Inc., a California non-profit organization, representing their members and a class of all veterans similarly situated.

Never has such a judicial tongue lashing sounded on behalf of those willing to wear a uniform and put their life in harm's way for the supposed benefit of their country.

A deal is a deal and even though they have been able to deflect responsibility for years, the VA, and the executive and legislative branches of the U.S. government have been called onto the carpet.

The suit was filed against a number of individuals:

• Eric Shinseki, Secretary of Veterans Affairs,
• James P. Terry, Chairman, Board of Veteran's Appeals,
• Michal Walcoff, acting Under Secretary, Veterans Benefits Administration,
• Bradley Mayes, Director, Compensation and Pension Service,
• Robert Petzel, M.D., Under Secretary, Veterans Health Administration,
• Pritz K. Navara, Veterans Service Center Manager, Oakland Regional Office, Dept of Veterans Affairs,
• Eric H. Holder Jr. Attorney General of the United States,
• Bruce E. Casold Jr., Chief Judge of the United State Court of Appeals for Veterans Claims

This is our link to the full report: Opinion from the United States Court of Appeals for the Ninth Circuit. An interesting sidenote; both the U.S. federal government and the United Nations are now encrypting PDF court documents like the one at the above link, and encoding them so that they absolutely can not be copied. So, a few other journalists (undoubtedly) and I spent some time typing it out by hand. It is somewhat unrelated, but this is the farthest thing from government transparency.

The case was argued on 12 August 2009, and submitted in San Francisco, on 14 September 2009. What the Judge relates in the very first paragraph is something we have been talking about consistently for years, particularly our writer Dr. Phil Leveque, who as a physician treated hundreds of combat veterans who suffered from Post Traumatic Stress Disorder, commonly known as PTSD. All of the text in blockquote is from judge's opinion, unedited and chronological.

Before Kozinski, Chief Judge, Hug and Reinhardt, Circuit Judges, this opinion was issued by Judge Reinhardt:

On an average day, eighteen veterans of our nation's armed forces take their own lives. Of those, roughly one quarter are enrolled with the Department of Veterans Affairs ("VA") health care system. Among all veterans enrolled in the VA system, an additional 1,000 attempt suicide each month. Although the VA is obligated to provide veterans mental health services, many veterans with severe depression or post-traumatic stress disorder ("PTSD") are forced to wait weeks for mental health referrals and are given non opportunity to request or demonstrate their need for expedited care.

For those who commit suicide in the interim, care does not come soon enough. Like the cavalry of Alfred, Lord Tennyson's "Charge of the Light Brigade," these veterans may neither "make reply" nor "reason why" to the "blunder" of those responsible for their safety.

The Charge of the Light Brigade at Balaklava by William Simpson (1855), illustrating the Light Brigade's charge into the "Valley of Death".

The Charge of the Light Brigade was the British cavalry charge led by Lord Cardigan against Russian forces in the Crimean War. It took place during the Battle of Balaclava on 25 October 1854. Wikipedia explains that the charge was the result of a miscommunication in such a way that the brigade attempted a much more difficult objective than intended by the overall commander Lord Raglan. The charge was no victory, and it led to very high casualties. Lord Tennyson's lines in "Charge of the Light Brigade," emphasize the valour of the cavalry in carrying out their orders, even "tho' the soldier knew/Some one had blunder'd".

It is one thing to make a mistake, and something else entirely to proceed down a path when you know you are wrong, and that is exactly what all of those men named above are guilty of, so it appears.

We know that the State Dept. and several other agencies visit Salem-News.com every day and we are glad for that, but that tells us that many officials in the power realms do know about this data that is now really hitting the fan.

You will note that this judge is royally disturbed by what they have collectively learned about the treatment American veterans face.

I have included a number of links below that do not represent all of our stories about veteran suicide, but it is a good selection of them. I wrote about the rate of 1,000 veterans attempting to commit suicide on 21 April 2008. My point is that the information has been out here, and Salem-News.com may actually have one of the largest selections of stories about veterans and suicide.

It means there are no excuses.

Obama and all of his men have utterly failed at taking care of those who served this nation.

Veterans who return home from war suffering from psychological maladies are entitled by law to disability benefits to sustain themselves and their families as they regain their health.

Yet it takes an average of more than four years for a veteran to fully adjudicate a claim for benefits. During that time many claim are mooted by deaths. The delays have worsened in recent years, as the influx of injured troops returning from deployment in Iraq and Afghanistan has placed an unprecedented strain on the VA, and has overwhelmed the system that it employs to provide medical care to veterans and to process their disability benefits claims. For veterans and their families, such delays cause unnecessary grief and privation. And for some veterans, most notably those suffering from combat-derived mental illnesses such as PTSD, these delays may make the difference between life and death.

In this context, two non-profit organizations, Veterans for Common Sense and Veterans United for Truth (Collectively "Veterans"^[1]) seek injunctive and declaratory relief to remedy the delays in (1) the provision of mental health care and (2) the adjudication of service-connected death and disability compensation claims by the VA. Among other issues, Veterans ask us to decide whether these delays violate veterans' due process rights to receive the care and benefits they are guaranteed by statute for harms and injuries sustained while serving our country. We conclude that they do.

Doctor Phillip Leveque in his WWII uniform.

This is the very point that Dr. Leveque has been driving home on our pages since 2007, very consistently I may add, and he would know, because he too is a PTSD survivor, having fought the Nazi's as a U.S. Army soldier in the Second World War.

In January 2008 he wrote about the disturbing suicide trends:

"Vets news, the Oregon Department of Veterans affairs (ODVA) just published its January/February newspaper. I was not comforted by reading their article underlined, Combat, Suicide Related which lays out in grim detail disturbing facts.

"The first fact was that suicide is the 11th most frequent cause of death and the rate among returning battle veterans is twice that of the general population. We know that battle veterans and those in battle zones represent only about ten percent of the population. The facts are tragic and staggering. We are losing our best and brightest.

"The Oregon Department of Human Services, ODHS, reports that suicides are the leading cause of violent death and veterans though low in numbers, represent 28% of total suicides."

He knows more about all of this than any man should. In late 2009 he wrote his time in WWII:

Dr. Phillip Leveque and Bonnie King - Salem-News.com

"One can be ordered to perform a real suicide battle mission as simply as one could be ordered to clean his rifle or shave. The command system to underlings is much worse than master to slave. The slave had value. An Infantry private has only superficial value and he is EXPENDABLE just like a rifle cartridge.

"Non-infantry Veterans or civilians probably do not understand this. Infantrymen can be classified as walking dead men. Seventy percent of the dead and wounded of WWII were Infantry and I don’t think things have changed much in the last 65 years."

That we should have him today to draw attention to these massive problems in the VA, is beyond fortunate; it is a blessing. Perhaps today the good Doctor won't feel like he has been banging his head on the wall all of this time trying to reach people with the most poignant information possible.

The judge does not pull his punches assessing the situation that led to this miserable news of 18 American veteran suicides a day.

We do not reach this answer lightly. We would have preferred Congress or the President to have remedied the VA's egregious problems without our intervention when evidence of the Department's harmful shortcomings and its failure to properly address the needs of our veterans first came to light years ago. Had Congress taken the requisite action and rendered this case unnecessary even while it was pending before us, we would have been happy to terminate the proceedings and enter an order of dismissal. Alternately, had the CA agreed with Veterans following oral argument to consider a practical resolution of the complex problems, the end result surely would have been more satisfactory for all involved. We joined in our dissenting colleague's suggestion that we defer submission of this case in order to permit the parties to explore mediation, and we regret that effort proved of no avail. We willingly acknowledge that, in theory, the political branches of our government are better positioned than are the courts to design the procedures necessary to save veterans' lives and to fulfill our country's obligation to care for those who have protected us. But that is only so if those governmental institutions are willing to do their job.

The matter is so large, perhaps nothing like this has ever really happened before. The common consensus among veterans is that there is not sufficient money to care for veterans, particularly as the number of injured grows and grows from the continuing wars overseas. We hope that is the reason that the officials have balked and drug their feet. But perhaps it is worse than that; some of our reports have highlighted some pretty heartless characters inside the VA's chain of power who incriminate themselves with the worst possible revelations about the treatment of veterans.

Again though, as the judges indicate, there are no secrets about all of this. The wars are terrible winnless ventures that claim more and more in the way of life, and they return to a nation where the VA's unofficial motto is, "Deny deny until they die"- it isn't hard to believe.

We are presented here with the question of what happens when the political branches fail to act in a manner that is consistent with the constitution. The Constitution affirms that the People have rights that are enforceable against the government. One such right is to be free from unjustified governmental deprivation of property - including the health care and benefits that our laws guarantee veterans upon completion of their service. Absent constitutionally sufficient procedural protections, the promise we make to veterans becomes worthless. When the government harms its veterans by the deprivations at issue here, they are entitled to turn to the court for relief. Indeed, lour Constitution established an independent Judiciary precisely for situations like this, in which a vulnerable group, that is being denied its right by an unresponsive government, has nowhere to else to turn. No more critical example exists than when the government fails to afford its injured or wounded veterans their constitutional rights. Wars, including wars of choice, have many costs. Affording our veterans their constitutional rights is a primary one.

It is not every day that such news is announced. I can only imagine how the people at Veterans for Common Sense and Veterans United for Truth feel today after so much effort, so many hours, so much invested. As the Judge goes down the line of problems he is clear with the nation's top officials as to what their role, or lack of one to be more specific, has led to.

There comes a time when the political branches have so completely and chronically failed to respect the People's constitutional rights that the courts must be willing to enforce them. We have reached that unfortunate point with respect to veterans who are suffering from the hidden, or not hidden, wounds of war. The VA's unchecked incompetence has gone on long enough; no more veterans should be compelled to agonize or perish while the government fails to perform its obligations. Having chosen to honor and provide for our veterans by guaranteeing them the mental health care and other critical benefits to which they are entitled, the government may not deprive them of that support through unchallengeable and interminable delays. Because the VA continues to deny veterans what they have been promised without affording them the process due to them under the Constitution, our duty is to compel the agency to provide the procedural safeguards that will ensure their rights. When the stakes are so high for so many, we must, with whatever reluctance, fulfill our obligation to take this extraordinary step^[2].

We affirm the district court's rulings with respect to Veterans various claims for specific forms of relief under the Administrative Procedure Act, including their claims for system-wide implementation of various VA mental health care initiatives and their claims for the alteration of disability compensation adjudication procedures in VA regional offices. We conclude, as did the district court, that the relevant provisions of the Administrative Procedure Act prevent us from granting Veterans the statutory relief that they seek. We reverse, however, the district court's rulings on Veteran's constitutional claims. We hold that the VA's failure to provide adequate procedures for veterans facing prejudicial delays in the delivery of mental health care violates the Due Process Clause of the Fifth Amendment, and that the district court erred when it found otherwise. We further hold that the district court erred in concluding that it lacked jurisdiction to review Veteran's Due Process challenges to delays and procedural deficiencies in the compensation claims adjudication system, and that it erroneously denied Veterans the relief to which they are entitled under the Due Process Clause. We therefore affirm the district court in part, reverse in part, and remand for further proceedings.

^[1] We use the term Veterans to refer to the two plaintiff organizations as well as to their members throughout.

^[2] We emphasize that we are presented with grave questions of life and death, and fundamental structural problems with the government's fulfillment of its duty to veterans. This is a serious matter, which deserves to be taken seriously, rather than as an opportunity to employ military metaphors in a failed effort to entertain the reader.

It is a new day for American veterans, where the money will come from remains to be seen, but this country's government owes its veterans and it is refreshing to see a branch of our government force the issue.

2011

Jan-20-2011: Doctor Suicides Vs. Military Suicides: There is a Connection - Dr. Phil Leveque Salem-News.com

2010

Dec-04-2010: Women Veteran Suicides: Is this SOP (Standard Operating Procedure)? - Dr. Phil Leveque Salem-News.com

Oct-26-2010: PTSD Therapy: One Trillion Dollars - Dr. Phil Leveque Salem-News.com

Sep-14-2009: War Hero Assassinations and War Hero Suicides - Dr. Phillip Leveque Salem-News.com

Aug-23-2010: PTSD Psychosis: the Army and VA's Miserable Mistreatment: Time Magazine Expose - Dr. Phil Leveque Salem-News.com

Aug-02-2010: Soldier Suicides: They are Killing my Infantry Buddies - Dr. Phillip Leveque Salem-News.com

2009

Dec-29-2009: Military Suicides: Soldiers Driven to Desperation Deaths - Dr. Phil Leveque Salem-News.com

Dec-11-2009: PTSD Hell: It's Like Brainwashing - Dr. Phil Leveque Salem-News.com

Nov-13-2009: Was Homeland Security Created to Protect Those Who Deceived the U.S.? - Jeff Gates Salem-News.com

Nov-09-2009 : PTSD: Misinformation & Misunderstandings - Dr. Phil Leveque Salem-News.com

Sep-01-2009: PTSD Training in the Army - Dr. Phil Leveque Salem-News.com

Jul-20-2009: PTSD CAN KILL YOU - Dr. Phil Leveque Salem-News.com

June-30-2010: PTSD, Anti-Depressants, Seroquel & TranquilizersConfessions of a VA Lab Rat - Dr. Phil Leveque Salem-News.com

June-03-2009: Army Chicken Spit ~ Army Suicides: Who's Running that Show? - Dr. Phil Leveque Salem-News.com

May-20-2009: Sgt. John Russel: A Reprise - Condemned to the Hell of PTSD - Dr. Phil Leveque Salem-News.com

May-13-2009: PTSD Vet Hits the Wall: Goes Berserk and Kills Five - Dr. Phil Leveque Salem-News.com

Apr-19-2009: Army Suicides: The Invisible Elephant in the Pentagon - Dr. Phillip Leveque Salem-News.com

Feb-12-2009: PTSD Suicides: The Army Can't Explain? - Dr. Phillip Leveque Salem-News.com

Feb-09-2009: Documentary Will Examine PTSD: Post Traumatic Stress Disorder - Salem-News.com Staff

Jan-21-2009: PTSD Combat and Suicide: The Price of Battle - Dr. Phil Leveque Salem-News.com

2008

Sep-03-2009: Veteran Suicide Epidemic: The Shame of America - Dr. Phil Leveque Salem-News.com

Apr-21-2008: VA Inadvertently Confirms that a Thousand Vets a Month are Attempting Suicide - Tim King Salem-News.com

May-19-2008: VA Busted Again Over Poor Diagnosis and Mistreatment of PTSD Vets - Tim King Salem-News.com

Feb-18-2008: PTSD Veterans: Suicide and Murder - Dr. Phillip Leveque Salem-News.com

Feb-14-2008: Study Indicates More National Guard Vets Commit Suicide - Tim King Salem-News.com

2007

Oct-03-2007: Reporting System Can Help Prevent Veteran Suicide - Salem-News.com

Nov-11-2007: Battle Fatigue and Suicide - Dr. Phillip Leveque Salem-News.com

Sep-17-2007: Suicide Rates Among Oregon Veterans on The Rise - Salem-News.com

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Tim King: Salem-News.com Editor and Writer

Tim King is a former U.S. Marine with twenty years of experience on the west coast as a television news producer, photojournalist, reporter and assignment editor. In addition to his role as a war correspondent, this Los Angeles native serves as Salem-News.com's Executive News Editor. Tim spent the winter of 2006/07 covering the war in Afghanistan, and he was in Iraq over the summer of 2008, reporting from the war while embedded with both the U.S. Army and the Marines.

Tim holds awards for reporting, photography, writing and editing, including the Excellence in Journalism Award by the Oregon Confederation of Motorcycle Clubs (2010), Oregon AP Award for Spot News Photographer of the Year (2004), First-place Electronic Media Award in Spot News, Las Vegas, (1998), Oregon AP Cooperation Award (1991); and several others including the 2005 Red Cross Good Neighborhood Award for reporting. Tim has several years of experience in network affiliate news TV stations, having worked as a reporter and photographer at NBC, ABC and FOX stations in Arizona, Nevada and Oregon. Tim was a member of the National Press Photographer's Association for several years and is a current member of the Orange County Press Club.

Serving the community in very real terms, Salem-News.com is the nation's only truly independent high traffic news Website. As News Editor, Tim among other things, is responsible for publishing the original content of 82 Salem-News.com writers. He reminds viewers that emails are easily missed and urges those trying to reach him, to please send a second email if the first goes unanswered. You can send Tim an email at this address: newsroom@salem-news.com